Cape Wind foes appeal latest legal defeat

Plaintiffs have filed their opening brief in an appeal of a federal judge's decision to throw out a lawsuit that contended that state regulators' approval of a contract to sell power from Cape Wind to NStar was unconstitutional.

Plaintiffs have filed their opening brief in an appeal of a federal judge's decision to throw out a lawsuit that contended that state regulators' approval of a contract to sell power from Cape Wind to NStar was unconstitutional.

The suit was filed against Cape Wind, state officials and NStar by the town of Barnstable, the Alliance to Protect Nantucket Sound and several individuals and businesses.

U.S. District Judge Richard Stearns found on May 2 that the plaintiffs, who had sued officials at the state Department of Public Utilities and the state Department of Energy Resources, were barred from doing so under the 11th Amendment to the Constitution, which restricts lawsuits in federal court against a sovereign state for past actions.

In addition, he found that, even if the lawsuit had passed the 11th Amendment test, it still would have lost on the merits.

In a 66-page brief filed Monday in the U.S. Court of Appeals in Boston, plaintiffs argued that Stearns' finding that the suit was barred by the 11th Amendment was "gravely flawed."

According to the brief, co-written by noted constitutional lawyer and Harvard Law School professor Laurence Tribe, the U.S. Supreme Court has established that the amendment does not preclude valid challenges to the "ineffectiveness" of past state actions or policies.

In addition, according to the brief, the case should be allowed to proceed because the lower court had not ruled on its merits regardless of Stearns' speculation on a likely outcome.

"This brief paints a troubling picture of the state's actions and its ongoing efforts favoring Cape Wind, which harm consumers and close the door on other, more viable green energy options," Alliance to Protect Nantucket Sound President Audra Parker said in a statement released Wednesday.

Cape Wind's opponents are making the same failed arguments the judge already called "'misleading and ultimately untrue,'" company spokesman Mark Rodgers wrote in an email.

"Project opponents have now lost 26 legal decisions and with this filing they are heading to 27," he wrote.